Darby v. State

• Decision Date: 16 October 1980
• Docket Number: No. 112,112
• Parties: Franklin B. DARBY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 1

47 Md.App. 1

421 A.2d 108

Franklin B. DARBY v. STATE of Maryland.

No. 112.

Court of Special Appeals of Maryland.

Oct. 16, 1980.

Nancy L. Cook, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender of Maryland on the brief, for appellant.

Ann E. Singleton, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. of Maryland, Warren B. Duckett, Jr., State's Atty. for Anne Arundel County and R. David Fordham, Asst. State's Atty. for Anne Arundel County on the brief, for appellee.

Argued before MASON, LISS and MacDANIEL, JJ.

MacDANIEL, Judge.

In September 1979, appellant Franklin Darby was indicted for escape from the Maryland House of Correction. He was tried before a jury in the Circuit Court for Anne Arundel County on January 7, 1980, and found guilty. A five-year sentence was imposed.

In this appeal appellant presents two questions:

(1) Was he denied his right to have process for his witnesses?

(2) Was his base file erroneously admitted into evidence?

Finding merit in neither of these allegations of error, we shall affirm appellant's conviction.

Appellant was charged with having escaped from the Maryland House of Correction on or about August 22, 1979. Appellant requested that writs of habeas corpus ad testificandum be issued for twenty-six of his fellow inmates. Five days prior to trial the court held a hearing to consider appellant's request.

Appellant's counsel advised the court that appellant's defense was going to be "along the lines of Robinson v. State, that there was certain self help in the escape." ¹ When asked to proffer the witnesses' testimony, appellant asserted that they would testify that "the whole thing is a threat, the whole Maryland House of Correction." Specifically, he asserted that they would testify that on July 4, 1979, a correctional officer threatened to "beat (appellant's) head in." Appellant explained that although not all twenty-six inmates were present at the time of the alleged threat, nevertheless they "knew all about it."

The trial court expressed concern that summonsing twenty-six inmates "would place a burden on the security of the courthouse." The court also found that, as a matter of law, the witnesses' testimony was not relevant to appellant's necessity or duress defense. In view of the fact that seven weeks had elapsed between the date of the threat and the date of appellant's escape, the court ruled that there had been more than sufficient time for him to first make a complaint and resort to the courts. Declining to issue the requested writs, the trial court stated:

"... this is just to summons in twenty-six inmates to attempt to try the system, and if he's permitted to pull in twenty-six inmates to testify to absolutely nothing relevant about the case, then there's no reason why he can't issue a writ for every inmate in the state of Maryland. It's just merely an attempt to destroy the system which I will not be part to. Motions denied."

Defense counsel then noted his objection:

"I don't know as there's any law that we can discover that says that he cannot have any person subpoenaed in his behalf. I think he has a constitutional right to that, irrespective of what they have to say and I would so mention that to the Court."

Appellant here renews the objections to the court's ruling which he made at trial. He asserts that the United States Constitution, the Maryland Declaration of Rights and the Maryland Rules of Procedure expressly grant an accused in a criminal case the right to have witnesses testify on his behalf, and to secure the attendance of witnesses through compulsory process; and that they impose upon the court the duty to summons any witness whose presence is requested.

The Sixth Amendment to the Constitution of the United States provides, in part:

"In all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."

Article 21 of the Maryland Declaration of Rights states:

"That in all criminal prosecutions, every man hath a right ... to have process for his witnesses; ..."

And Maryland Rules of Procedure 742, § b, provides in part:

"Upon the request of a party filed at least nine days before trial ... the clerk shall issue a summons commanding a witness to appear to testify at a hearing or trial...."

To restate his argument, appellant asserts that the Sixth Amendment, Article 21 of the Declaration of Rights and Maryland Rule 742 b. confer upon him an absolute right to compulsory process. That is to say, he asserts that they confer a right which is not, nor may be, conditioned upon his ability to demonstrate the necessity for the witness' presence, or the relevance or materiality of his testimony. Appellant suggests that the Court of Appeals' decisions in Blount v. Wright, 189 Md. 294, 55 A.2d 709 (1947) and Edmondson v. Brady, 188 Md. 96, 52 A.2d 96 (1947), and our decision in Van Meter v. State, 30 Md.App. 406, 352 A.2d 850 (1976), are authority for his proposition. They are not. Edmondson and Blount stand merely for the proposition that although the Declaration of Rights assures a defendant process for his witnesses (ceteris paribus ) it does not guarantee the attendance of witnesses. Edmondson, at 102, 52 A.2d 96; Blount, at 296-97, 55 A.2d 709. As for Van Meter, we fail to see how it furthers the discourse in any way whatever.

Although we have carefully reviewed the decisions of this Court and the Court of Appeals, we are aware of no Maryland case addressing the precise question presented here.

We turn first to consider appellant's constitutional challenge to the trial court's ruling. ² We think it is well established in other jurisdictions that the Sixth Amendment right to compulsory process is fundamental but not absolute. State and Federal courts have held that the right is assertable only where the witnesses to be called will offer competent and material testimony. Thus, for example, in Commonwealth v. Jackson, 457 Pa. 237, 324 A.2d 350 (1974), the Supreme Court of Pennsylvania stated, 324 A.2d at 354-55:

"Article I, section 9, of the Pennsylvania Constitution guarantees an accused the right 'to have compulsory process for obtaining witnesses in his favor....' A similar provision is contained in the United States Constitution. U.S. Const. Amend. VI. See also Act of May 31, 1718, 1 Sm.L. 105, § 4, 19 P.S. § 783. The right to compulsory process encompasses the right to meet the prosecution's case with the aid of witnesses, and the right to elicit the aid of the Commonwealth in securing those witnesses at trial, both of which are fundamental to a fair trial. This constitutional right, though fundamental, is not, however, absolute. Evidentiary rules based on legitimate state interests which exclude certain witnesses or certain testimony are not inconsistent nor incompatible with the right to compulsory process. Accordingly, where certain witnesses' testimony would not be admissible at trial, the Constitution does not require that a defendant be given the right to secure the attendance of witnesses which he has no right to use. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Our inquiry is thus directed to the question of the admissibility of the testimony which would have been given by the two witnesses whom appellant requested to be subpoenaed." (Footnote omitted.)

The Court held that the trial court did not err in denying subpoenas for the witnesses since the proffered testimony was irrelevant.

And in State v. Ahearn, 403 A.2d 696 (Vt.1979), the Supreme Court of Vermont held:

"A trial court is not required to issue compulsory process for anyone whom an accused may designate as a witness.... Compulsory process is only required where the witnesses to be called will offer competent and material testimony.... The burden is on the defendant to show that competency and materiality.... The trial court has wide discretion to determine which witnesses requested by an indigent defendant should be subpoenaed at government expense, and its decision will not be disturbed except in cases of clear abuse." (Citations omitted.) 403 A.2d at 704.

And finally, in Davis v. United States, 390 A.2d 976 (D.C.1978), the District of Columbia Court of Appeals held that the defendant was not denied his Sixth Amendment right to compulsory process when the trial court quashed his subpoenas; the trial court had ruled that the defendant had not made a clear showing that the witnesses' testimony was necessary to prevent prejudice and injustice. The Appellate Court stated, at 390 A.2d 980-81:

"Finally, appellant contends that he was denied his Sixth Amendment right to compulsory process when the trial court quashed three subpoenas which had been served by Mr. Davis on the Attorney General of the United States, the Acting Chief of the Metropolitan Police Department, and the Director of the Maryland Lottery. Appellant wanted these individuals to testify as to the operation of lotteries in general, the extent of their existence in the District of Columbia, and the efforts of the government to regulate them. It is apparent that appellant intended to use this testimony to support his claim of selective enforcement.

The right of an accused to have compulsory process for obtaining witnesses in his favor is undisputed; nevertheless, there are limitations on that right. The Supreme Court delineated those limitations in holding that an accused was denied his right to compulsory process where the 'State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.' Washington v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019 (1967) (footnote omitted). Here, appellant can show neither (1) that the...